As you know, under the FLSA, “bona fide meal periods” are not regarded as work time and can be unpaid. For a break to qualify as a bona fide meal period, “[t]he employee must be completely relieved from duty for purposes of eating regular meals,” and the break must generally be at least 30 minutes or longer. The rules even allow periods shorter than 30 minutes to qualify as unpaid “under special circumstances.” For example, in a 2004 opinion letter, the Department of Labor found that an employer could permissibly reduce its 30-minute unpaid lunch break to 20 minutes and provide an extra 10 to 15-minute paid break, given that the employer and employees’ union agreed to the arrangement and that it took employees only one to one-and-a-half minutes to reach the break room once they were relieved from duty.

Often, questions about unpaid meal periods lead to questions about automatically deducting a meal period for non-exempt employees, like this one:

Q: When an hourly employee takes a 30-minute unpaid lunch break where they are completely relived of their job duties, do they have to record the actual time of day the lunch break was taken? Our time and attendance system allows employees to enter their start time and end time, and then to enter the length of the meal break, which by default is 30 minutes. The system automatically subtracts the length of the unpaid lunch entered by the employee (or 30 minutes, if the employee enters nothing). Does it matter that we do not record the actual start and end times of the lunch break?

Most employers in our experience have employees clock in and clock out for lunch and deduct this exact time from the paid portion of the workday. However, some employers—either because of the nature of the work or industry or because of historical practices—have implemented automatic deductions for meals. Under this approach, the employer simply deducts a set amount of time each day or shift for an employee’s meal break. As we discussed earlier this year with rounding breaks and meal periods, unless you are facing a unique challenge, requiring non-exempt employees to clock out and back in for meal periods is easy and avoids any of the ambiguity of automatic deductions. It’s also transparent to employees. For those of you who need or want to implement automatic deductions, though, you are not out of luck. The DOL does allow automatic deductions under the FLSA, like the system described above by our reader.

Here are a few pointers that will help you avoid some of the risks associated with automatic deductions under the FLSA. First, employers must remember that the FLSA requires them to compensate employees for all work “suffered or permitted,” even work the employer does not know about or even specifically authorizes in advance. That makes meal times potentially troublesome, such as when employees are eating at their workstations or using their smartphones during their lunch break.

In Quickley v. University of Maryland Medical System Corporation, a hospital automatically deducted 30 minutes from employees’ daily time records for scheduled meal breaks, just like the employer in our question above. Unlike our employer above, though, the employees who sued the hospital alleged that they had no way (either through their electronic time clock or manually) to adjust this deduction if they worked during their meal break. In denying the hospital’s motion to dismiss, the court explained that if an employer adopts an automatic deduction policy that shifts the burden to an employee to report deviations in standard meal breaks, the employer must clearly articulate its policy to employees and “make every effort to facilitate reporting opportunities.” The court explained that employers “cannot simply abdicate responsibility for adequate compensation by shifting the burden to employees.” To minimize wage and hour liability, an employer must “exercise its control and see that the work is not performed if it does not want it to be performed.”

Like our reader, employers who adopt automatic deduction policies for meal breaks must implement a policy and regularly train new hires, employees, and supervisors on how to use it. Importantly, the policy and the actual timekeeping system must provide ways (preferably more than one) for employees to override or adjust an automatic deduction if they work during some or all of their meal breaks. The best practice is to simply require employees to clock out and back in for meal breaks, but automatic deductions can be an option for you if you structure your policies and practices carefully. As always, make sure you talk to wage and hour counsel first before trying any of this at home!